Name Suppressed v National Standards Committee (no.1) of the New Zealand Law Society

[2021] NZHC 1205

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-656

[2021] NZHC 1205

UNDER

Section 253 of the Lawyers and Conveyancers Act 2006

BETWEEN

NAME SUPPRESSED

Appellant

AND

NATIONAL STANDARDS COMMITTEE (No. 1) OF THE NEW ZEALAND LAW SOCIETY

Respondent

Hearing:	4 May 2021
Appearances:	J Long and J Grimmer for the Appellant D La Hood for the Respondent
Judgment:	27 May 2021

REASONS JUDGMENT OF HINTON J

This judgment was delivered by me on 27 May 2021 at 12;00 noon pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

Duncan King Law,

Julian Long, Barrister, Auckland

Luke Cunningham & Clere, Barristers & Solicitors, Wellington

NAME SUPPRESSED v NATIONAL STANDARDS COMMITTEE (No. 1) OF THE NZ LAW SOCIETY [2021] NZHC 1205 [27 May 2021]

[1]    On 12 May 2021 I delivered a results judgment on an appeal by a legal practitioner regarding the expiry date of an interim name suppression order.1 The Lawyers and Conveyancers Disciplinary Tribunal in a decision dated 14 April 2021 had granted name suppression down to 9:30 am on 17 May 2021, the first day of the hearing of professional disciplinary proceedings, rather than to the date of determination, as sought.2 I allowed the appeal by the practitioner and extended the suppression order down to the date of the Tribunal’s determination.

[2]These are my reasons.

Background

[3]    Following an investigation of almost three years the appellant was served with disciplinary charges on 2 November 2020. The charges relate to sexual misconduct (or alternatively unsatisfactory conduct) as a practitioner.

[4]    On 9 December 2020 the appellant applied for non-publication orders which the National Standards Committee (the Committee) did not oppose, but rather abided. The primary ground relied on was risk of harm to the appellant’s young partner and baby as a result of publication.

[5]    At a hearing on 11 February 2021 the Tribunal indicated the evidence fell short of that required to tip the balance against openness but allowed 14 days to file supplementary evidence including a specific current assessment of the appellant’s partner’s mental health. The Tribunal also required the appellant to put in place a process to inform his clients, present and potential, of the charges he was facing.

[6]    The appellant provided the supplementary evidence including further affidavits from himself, his former wife and an expert affidavit from clinical psychologist, Esther Yong.

[7]    On 14 April 2021 the Tribunal granted name suppression down to the commencement of the substantive hearing before them. In their reasons judgment of

1      Name Suppressed v National Standards Committee (No 1) [2021] NZHC 1053.

2      National Standards Committee (No 1) v Name Suppressed [2021] NZLCDT 14.

that date they said that they found Ms Yong’s psychological evidence as to the negative effect that publication would have on the partner’s health “compelling, particularly since any risk to the mother must also pose a significant risk to the young baby for whom she is the primary caregiver”.3 The Tribunal found there was a “real risk of psychological harm to both the practitioner’s partner and her baby if the practitioner’s name were published”.4

[8]    The Tribunal also said that the appellant’s reluctance to divulge details about the charges to his partner, on their assessment, had significantly increased the risk of harm she may suffer as a result of name publication.

[9]    It is clear that this factor is taken into account in the decision. Inter alia at [28(b)] the Tribunal said expressly that the likelihood of harm to the practitioner’s partner from publication:

“has arisen out of the failure of the practitioner to explain the nature and extent of the alleged conduct to his partner. The situation has been exacerbated by the practitioner’s partners need to act frequently as sole caregiver while the practitioner is away on business. The practitioner has not seemed to have placed much emphasis on the need for support for his partner during those times”.

[10]   The Tribunal concluded that with just over a month remaining before the substantive hearing began, there was sufficient time for full disclosure of the allegations of fact to be made by the practitioner to his partner and if done promptly there was also time for appropriate support to be put in place to assist her as from commencement of the substantive hearing. The Tribunal then determined that the period of interim suppression should be extended to the morning of the hearing to ensure there was such time.

[11]The Tribunal referred to other factors as follows:

(a)concerns over the practitioner’s lack of timely disclosure (to clients), particularly in the context of a scheduled substantive hearing of the charges just over one month away;

3 At [23].

4 At [24].

(b)the practitioner and his former spouse (that is not his current partner) had been subject to media attention back in 2018, which indicated existing knowledge of his identity at least in Wellington and a likelihood that his name was already in the public domain particularly in the relevant legal community;

(c)the majority of the alleged victims’ wish for the process to be open and transparent (four out of five victims opposed name suppression, the other victim was neutral);

(d)the appellant’s former firm, Russell McVeagh, does not have name suppression and publication would ensure that other male partners (or employees) of the firm at the time of the allegations are not at risk of being incorrectly identified as the person facing charges;

(e)although the practitioner’s former wife would undoubtedly suffer embarrassment and additional stress from publication, her evidence was insufficient to displace the presumption of open justice.

Approach on appeal

[12]   Appeals in cases involving name suppression in professional disciplinary proceedings have for some time been treated as appeals against the exercise of a discretion.5 To succeed in an appeal against discretion the appellant must show that the Tribunal acted on a wrong principle, failed to take into account a relevant matter or took into account an irrelevant matter or the decision was “plainly wrong”.6 Then the appellate court may come to its own assessment of the merits of the case.

[13]   More recently in a number of decisions of this Court it has been held that such an appeal is a general appeal by way of rehearing to which Austin, Nichols should apply.7

5      See Hart v Standards Committee (No. 1) [2011] NZCA 676, at [16].

6      May v May (1982) 1 NZFLR 165, at 170.

7      See in particular J v New Zealand Institute of Chartered Accountants [2020] NZHC 1566, at [73] referring to Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

[14]   I had extensive and careful submissions on this point from Mr La Hood for the Committee but I do not consider it necessary to resolve that issue in this case because even applying the stricter test to which those appeals have traditionally been subject, I consider the appeal should be allowed.

The relevant law

[15]Section 240(1) of the Lawyers and Conveyancers Act 2006 provides:

240    Restrictions on publication

(1)If the Disciplinary Tribunal is of the opinion that it is proper to do so, having regard to the interest of any person (including (without limitation) the privacy of the complainant (if any)) and to the public interest, it may make any 1 or more of the following orders:

(a)   an order prohibiting the publication of any report or account of any part of any proceedings before it, whether held in public or in private:

(b)   an order prohibiting the publication of the whole or any part of any books, papers, or documents produced at any hearing:

(c)   an order prohibiting the publication of the name or any particulars of the affairs of the person charged or any other person.

[16]   The test is whether the Tribunal is “of the opinion that it is proper” to prohibit publication. That threshold is lower than for suppression in the civil context and in criminal proceedings under s 200 of the Criminal Procedure Act 2011. The circumstances needed to tip the balance do not need to be “exceptional” or “extreme”. The test requires the balance between the public interest on the one hand (namely the principle of open justice and transparency of process, public protection and maintenance of professional standards) against the private interest which can include a range of matters including undue hardship to the applicant, prejudice to a fair trial and risk to the safety of others. The latter was relied on here.

Discussion

[17]   In this case no one suggests that the Tribunal is in error in granting name suppression. The appellant contends that in granting name suppression only to the date of the hearing, the Tribunal took into account factors that it should not have taken into account. I agree.

[18]   First, the Tribunal was wrong to take into account that on their assessment the likelihood of harm to the practitioner’s partner had arisen out of the practitioner’s failure to explain the nature and extent of the charges, or at least that his actions had significantly increased the risk of harm she might suffer as a result of publication. The Tribunal refers to this factor both before and after stating its conclusion that there was a real risk of psychological harm to both the practitioner’s partner and her baby if the practitioner’s name were published.

[19]   As the appellant submits, Ms Yong concluded that the partner’s condition pre- existed the allegations made against the practitioner. While there can be no doubt it was wrong of the appellant to keep the charges secret or not properly divulged to his partner, there was no evidential basis in Ms Yong’s expert report or otherwise to say that this had significantly increased the risk of harm (or more).

[20]   Even if the practitioner’s actions had significantly increased the risk of harm, that risk nonetheless existed, as the Tribunal concluded. The practitioner’s actions should not be viewed as in some way militating against that risk.

[21]   Unless the Tribunal were concluding that the appellant had manoeuvred his partner into a position of psychological vulnerability and/or that the evidence was manufactured, which they do not, then I consider that while the Tribunal’s criticisms are understandable this is not a factor that can properly be taken into account in making the name suppression order and fixing the length thereof.

[22]   Secondly, I consider the Tribunal erred in concluding that one month would be sufficient time for the appellant to put in place appropriate support for his partner. There is no evidence to support that conclusion and the psychologist’s evidence strongly suggests the contrary. Ms Yong expressly addressed what mitigating action could be taken and she did not suggest that it would assist for the practitioner to promptly put in place appropriate support for his partner or indeed that he was capable of it. She said that the practitioner’s partner was already very socially isolated with limited family support and was reluctant to engage with ongoing psychotherapy given recent negative experiences. I agree with the appellant that to conclude that he would

be able to put in place appropriate support for his partner within a month prior to the hearing was speculative and contrary to the expert psychologist’s report overall.

[23]   I also agree with the appellant that the commencement of the hearing would logically seem the most difficult point for the appellant’s partner. For name suppression to lapse at that point would run counter to the conclusions of the report which the Tribunal had accepted.

[24]   Given those errors I am free to make my own assessment. Mr La Hood submitted that if I reached that point I should defer in any event to the Tribunal given its specialist expertise (which I wholly acknowledge) but I do not consider that applies to an issue like name suppression.

[25]Considering the other relevant factors listed by the Tribunal I note as follows:

(a)I accept that there is particularly high public interest in this case and that publication of a practitioner’s name is generally the strongest point of public interest. I note though that in a case such as this where the practitioner themselves is not high profile but the firm is, and the firm’s name is not suppressed, public interest in the practitioner’s name may not be so great;

(b)I accept that it seems likely that the practitioner’s name is known within the relevant legal community in Wellington but I have no reason to conclude that it is widely known beyond that legal community;

(c)I accept that the wish of the majority of the alleged victims for the process to be open and transparent is clearly relevant; and

(d)I would not place much emphasis on Mr La Hood’s submission that publication of the practitioner’s name would ensure that other male partners of the firm at the time are not at risk of being incorrectly identified, given that the firm did not seek name suppression and did

not  oppose  name  suppression  for the practitioner.    I consider they should be taken to speak for former partners or employees.

[26]   Weighing all of the matters addressed above and in particular taking into account that open justice is an important and key consideration, I concluded that the appeal should be allowed and the order made by the Tribunal in favour of interim name suppression should be extended until the date of the Tribunal’s determination. Thereafter the matter will obviously have to be revisited.

Hinton J